MAHOMEDALLY ADAMJI PEERBHOY Vs. AKBERALLY ABDULHUSSEIN ADAMJI PEERBHOY

JUDGEMENT

(1.) This is an appeal from a decree dated 18 August 1930, made by the High Court of Judicature at Bombay in its appellate jurisdiction, affirming (with some variations which are not material to this appeal) a decree dated 12 March 1929, and made by Madgavkar, J., sitting in the said High Court in its original civil jurisdiction. The plaintiffs are members of the Dawoodi Borah Community and, having an interest in the trust, which is the subject matter of the suit, they obtained the consent of the Advocate-General at Bombay to institute the suit in pursuance of S. 92, Civil PC of 1908 on the basis that the trust was created for public purposes of a charitable and religious nature. The first plaintiff is a grandson of the late Sir Adamji Peerbhoy, who created the above-mentioned trust. The first five defendants are sons of the said Sir Adamji Peerbhoy, defendant 6 is the Official Assignee and assignee of the estate of the said five defendants, and defendant 7 is a receiver appointed in a Suit No. 720 of 1916.

(2.) The first four defendants are the appellants to His Majesty in Council. The suit was brought for the following amongst other reliefs: (a) That it may be declared that the properties and moneys in paras. 1 and 3 of the plaint mentioned are the subjects of trusts created for public purposes of a charitable and religious nature; (b) that fit and proper persons may be appointed to be trustees of the said charities; (c) that the defendants be ordered to hand over the said properties and moneys to the trustees so appointed and to account for the rents and profits thereof; (d) that a scheme or schemes may be framed and such other relief given as may be necessary for the due and proper administration of the said charities

(3.) It is common ground between the plaintiffs and the defendants that the late Sir Adamji Peerbhoy did dedicate land and buildings, including a mosque, for public purposes of a religious and charitable nature. The buildings were to be used partly as a sanatorium, partly as a rest house for pilgrims and poor persons of the Dawoodi Borah community. Sir Adamji provided the money for all the buildings and maintained the same out of his own pocket and acted as mutawali during his lifetime. It was alleged, however by the defendant- appellants that Sir Adamji had reserved the upper floor of two blocks of the buildings for the use of members of his family and his friends and guests. The three main issues at the trial were as follows: 1. Whether the upper floors of the blocks 2 and 3 were reserved by Sir Adamji as settlor for the use of his family and their guests and friends? 2. Whether defendants 1-5 are Trustees de son tort or mutawalis appointed by Sir Adamji? and 3. In the last case, whether they should be removed or maintained as mutawalis?